September 11, 2007
ARTHUR HARDEN, PLAINTIFF-APPELLANT,
ARAMARK, INC., DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2693-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: August 29, 2007
Before Judges Cuff and Lintner.
Plaintiff Arthur Harden appeals from an order granting summary judgment to defendant ARAMARK, Inc. We reverse.
Plaintiff is a security guard at Georgian Court University. Defendant ARAMARK, Inc. and the university executed an agreement that authorized ARAMARK to provide physical plant operations and maintenance, janitorial and grounds maintenance services on the university campus. Plaintiff was injured while opening a display board at the entrance of the campus. The hinges on the sign had been repaired two days before the incident involving plaintiff.
Plaintiff alleged that the hinges on the sign required repair, that a repair was attempted but failed, and that ARAMARK failed to oversee the repair and inspect the work of the employee assigned to perform the repair. ARAMARK contended that it owed no duty to plaintiff to supervise the performance of university employees. Stated differently, ARAMARK asserts that it was required simply to assign a properly qualified person to perform the repair.
The motion judge held that "defendant ARAMARK maintained no supervisory duties with respect to the work performed by this fellow . . . Georgian Court University employee, nor was it obligated to do anything more than assign an individual with a certain work order and that, apparently, was done." The motion judge also held that, assuming a duty to supervise the repair, there was no evidence that the repair was performed in an unprofessional manner.
Section 4A of the Agreement provides that "ARAMARK's personnel assigned to duty on the Facilities will supervise actual performance of the Services, which will be carried out by the Staff." "Staff" is defined as employees of the university. The Director of Facility Services, also referred to as the Director of Facilities, was an ARAMARK employee and had "the authority to issue instructions to the Staff, establish their work schedules . . . and reassign members of the Staff from one type or area of work to another."
Exhibit A of the Agreement contains the specifications of the services to be performed by ARAMARK. The specifications commence with the following statement: "ARAMARK will, in consultation with the Client and subject to the Client's approval, supervise the staff in their provision of the following services. Among the services delineated in Exhibit A is grounds maintenance, including preventative maintenance. Inspection and repair of amenities, including signs, falls within ARAMARK's preventative maintenance responsibilities.
Thus, while any preventative maintenance work will be performed by university employees, the Agreement specifically contemplates that ARAMARK will supervise the work performed by those employees. In other words, ARAMARK's duty under the plain language of the Agreement extends beyond the mere assignment of a university employee to fulfill a work or repair order.
Finding that ARAMARK had a duty to supervise the work of college employees does not conclude our inquiry. Plaintiff must also submit evidence that ARAMARK breached its duty to inspect the work and that the repair was performed in a manner that caused the repair to fail.
Here, the record is devoid of any evidence that ARAMARK inspected the repair performed on the sign two days before plaintiff was injured while opening the sign. Furthermore, the collapse of the sign a mere two days following a repair raises an inference of negligence.
Plaintiff also contends that a statement by the employee assigned to the task is evidence of shoddy workmanship. Nebus was overheard stating that he did not believe the repair "would hold up long." This is a hearsay statement and a party seeking or resisting a motion for summary judgment must submit competent evidence. R. 4:46-2(a) and (b); Bilotti v. Accurate Forming Corp., 39 N.J. 184, 206 (1963). Plaintiff has submitted no facts from which the motion judge could legitimately infer that the Nebus statement overheard by another university employee and reported to plaintiff qualifies for admission pursuant to N.J.R.E. 803(b).
A party resisting a motion for summary judgment is entitled to have all legitimate inferences from the evidence resolved in its favor. Here, we have held as a matter of law that ARAMARK had a duty to inspect the work it had assigned a university employee to perform. The evidential record also allows an inference that ARAMARK breached that duty and that the work was negligently performed. Three is no dispute that the failure of the repair caused plaintiff's injury. The order granting summary judgment in favor of defendant is, therefore, reversed.
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